Opinion
Record No. 1053-92-2
June 15, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Gary W. Kendall (Michie, Hamlett, Lowery, Rasmussen Tweel, on brief), for appellant.
J. Gorman Rosenberger, Jr. (Wilson, Garbee Rosenberger, on brief), for appellees.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Nolen Goad appeals the decision of the Workers' Compensation Commission denying his claim for benefits and affirming the calculation of his average yearly wage. On appeal, we affirm the denial of benefits and find that Goad's union wages were properly excluded when calculating his average weekly wage because his work with the union constituted dissimilar employment.
On October 15, 1991, a hearing was held before the Deputy Commissioner. Appellant, Nolen Goad, a shell operator with the Lynchburg Foundry Company, was injured in an accident at work on April 24, 1989. After the accident, Goad was given light-duty work.
Goad is an elected union representative, which causes him to miss a small portion of his time at work as a shell operator in order to perform certain union-related tasks; the union pays Goad's wages for time missed from work doing union-related tasks. Being an hourly employee, Goad is not paid by the foundry when performing union tasks. Goad contends that his average weekly wage should include wages received from the union for union-related work because the collective bargaining agreement and federal labor law require him to represent both union and nonunion employees in personnel matters.
The year before his injury, Goad received $19,531.26 from company wages and $1,298.53 from union wages.
The deputy commissioner disagreed with Goad, stating:
[T]he average weekly wage in the employment in which he was injured, is the operative framework. [Although] we do have a mechanism whereby we look at wages in the aggregate . . . it has to be similar employment. And this is by no means similar.
On October 25, 1991, the deputy commissioner issued an opinion awarding Goad medical benefits, but he refused to count Goad's union wages when computing Goad's average weekly pre-injury wage. Goad's claim for temporary partial benefits was denied, the deputy noting that he was "unpersuaded that the claimant, as a consequence of his injury, has suffered a partial wage loss." The deputy based his findings on the fact that, had Goad worked on all available days, he would have been able to earn more than his average yearly wage prior to the accident.
On review, the commission issued an opinion on May 15, 1992 affirming the deputy's decision that Lynchburg Foundry was responsible for necessary medical expenses, including services provided by Scandia Rehabilitation Clinic up to April 11, 1991. As to the computation of Goad's average weekly wage, the commission also affirmed the deputy's finding that the union-paid wages were for dissimilar employment and should, therefore, be excluded in calculating the average weekly wage. The commission made no specific rulings regarding benefits, generally affirming the deputy's findings.
Regarding the additional week of treatment after April 11, 1991, which Scandia recommended but which Lynchburg Foundry refused to approve and which Goad never received, the commission held that additional medical evidence would be required before ruling on whether the employer must pay for such treatment beyond April 11. This issue is not before the Court on appeal.
"Under our standard of review . . . factual findings are conclusive and binding on this Court. Furthermore, the probative weight the commission gave the conflicting testimony is similarly within its province and not subject to our review."Birdsong Peanut Co. v. Cowling, 8 Va. App. 274, 279, 381 S.E.2d 24, 27-28 (1989) (citations omitted). Any theory of recovery that is not raised before the commission will not be considered for the first time on appeal. See Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987).
The Claim for Benefits
The record indicates that Goad requested temporary partial benefits from January 23, 1991 at the hearing before the deputy commissioner. In his brief to this Court, Goad questions whether the commission should have awarded him permanent partial or temporary total benefits. On the very next page in his brief, after arguing the issue, he requests the case be remanded to the commission for an award of "temporary partial benefits" and/or "temporary total benefits."
As to Goad's claim for permanent partial, permanent total or temporary total benefits, those issues were never raised before the commission; therefore, he is barred from raising them on appeal. Rule 5A:18; Green v. Warwick Plumbing Heating Corp., 5 Va. App. 409, 413, 364 S.E.2d 4, 6 (1988).
As to Goad's claim for temporary partial benefits, he failed to clarify in the record the basis for such benefits and the amount of benefits sought. In order to review an award for error, we must have an adequate record, including evidence of the matters pertinent to the questions at issue. Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 384, 363 S.E.2d 433, 438 (1987),appeal after remand, 9 Va. App. 120, 384 S.E.2d 333 (1989). While we might infer that Goad merely seeks wages for the week he attended Scandia Rehabilitation Clinic, the record contains no evidence of how much work he missed, whether he attended work at all, and the amount of wages sought. Lacking such evidence, we cannot speculate as to the amount of benefits to which Goad might be entitled.
The record shows that Goad's yearly salary for the year prior to the accident was $19,531.26, excluding union wages, and his salary for the year after the accident was $17,503.61, excluding union wages. The record indicates that Goad missed thirty-four and one-half days from work in the year following the accident, and none of those absences were shown to be related to the injury. Had Goad worked those days for which he was able, he could have earned additional wages of $2,648.22 which, when added to his yearly salary after the accident, would amount to $20,151.83, a yearly salary higher than Goad's pre-injury salary.
This computation is based on a post-injury hourly wage of $9.595 as appearing in the record. Multiplying $9.595 per hour times thirty-four and one-half days missed yields an additional $2,648.22 in wages which Goad was able to earn.
Accordingly, we conclude that Goad was not entitled to temporary partial benefits. As to temporary partial benefits from January 23, 1991 forward, we find no evidence in the record supporting such a claim.
The Calculation of the Average Wage: Union Wages
The "dissimilar employment rule" states that wages from dissimilar employment are not to be combined to determine average weekly wage under Code § 65.1-6 (now Code § 65.2-101).Hudson v. Arthur Treachers, 2 Va. App. 323, 326, 343 S.E.2d 97, 99 (1986).
[T]he "dissimilar employment rule" is an interpretive rule used by the commission to further define the meaning of "average weekly wages" as defined by [the Code], [and] it should be uniformly employed for this purpose in the Workers' Compensation Act. It would be unfair to use it to define an employee's "average weekly wages" where it benefited [sic] the employer but to decline to use it where it benefited [sic] the employee.
City of Fairfax v. Massey, 11 Va. App. 238, 241, 397 S.E.2d 679, 680-81 (1990), reh'g denied, 11 Va. App. 680, 401 S.E.2d 439 (1991).
We agree with the commission's finding that Goad's union activity was dissimilar employment. He was employed by Lynchburg Foundry as a shell machine operator. His duties were those of a laborer-operator. His employment as union business agent required him to resolve grievances and to attend arbitration sessions. Although both jobs were performed at the Foundry, they were clearly dissimilar jobs. Therefore, his wages as union representative were properly excluded when determining Goad's pre-injury average weekly wage.
As to Goad's assertion that wages paid by the union for voluntary union-related work should be added to his employer-paid wages because of federal labor law, he fails to develop any substantive argument or point to any specific violations of 29 U.S.C. § 158 (1988). There is no explanation as to how 29 U.S.C. § 158 (1988) makes the union work "similar" employment under Virginia's workers' compensation law. Because Goad's union-related activity is covered in the collective bargaining contract, which requires the union to pay wages to the elected union representative, the contract negotiation process is the proper forum to deal with the issue of post-injury compensation for voluntary, elected union representatives.
Accordingly, we affirm the commission's decision holding that union wages are excludable in computing a claimant's pre-injury average weekly wage.
For the reasons stated above, we affirm the commission's decision.
Affirmed.